Take Action: Harsh “Public Charge” Policy

“Public charge” rule change would harm Texas families. How to help stop it:

The Trump administration formally published proposed “public charge” rule changes at the Department of Homeland Security that would strongly bias legal immigration toward higher-income persons, while raising new high barriers for prospective immigrants if they have lower incomes, or have used government benefits like Medicaid, SNAP (food stamps), or housing subsidies. If the government anticipates that an immigrant might need benefits in the future—like Medicare’s sliding-scale “Extra Help” with prescription medication costs for seniors—an immigrant could also be denied a Green Card (legal permanent resident status) for that reason. The new policy will also create higher barriers for persons with a chronic illness or disability to gain legal status.

Now that the public comment period has ended, the Center is shifting our focus to helping immigrants and their families make informed decisions based on accurate and up-to-date information. We will be working in collaboration with other health advocates as well as advocates for immigrants and immigrant legal aid organizations to ensure that our materials are not only accurate but reflect the concerns and needs of the community. We will also continue to work with partners such as the Children’s Defense Fund to share the stories of the chilling effect this harmful policy has had on immigrants using healthcare and other types of federal benefits for themselves and their family members. See our 9/24 blog post for top issues identified so far. Read our updated Texas Public Charge Fact Sheet from October 10, 2018.

Kinds of prompt actions will be critical:
1. Public statements opposing the rule from organizations and public officials;
2. Sharing of stories and examples of how the rule will hurt children, schools, businesses, and communities, and shift costs to local governments; and
3. Education and support for Texas’ affected families. To support Texans in taking these actions, CPPP is providing the background material below, plus links to fact sheets and other resources below at How to Help and Get More Information.

Harsh Federal Proposal Would Deny Green Cards, Discourage Access to Food, Health Care, and HousingTexas parents should never have to avoid getting food or medical care for themselves or their U.S. citizen children out of fear that accepting help might derail the parent’s ability to complete the path to legal immigration. But this harsh scenario could be a possibility because of a federal proposal relating to what’s called “Public Charge.”

The Trump Administration has directed the Department of Homeland Security (DHS) to propose a sweeping rule change that could put immigrants and their U.S. citizen children and relatives at risk of being denied a green card if they use programs like Medicaid, food, housing, or Medicare prescription drug assistance. The callously proposed “public charge” rule changes would also strongly bias legal immigration toward higher-income persons, while raising new high barriers for prospective immigrants if they have lower incomes.

The combination of the direct effects of the proposed policies with the massive confusion and fear generated by the Administration’s circulation of earlier rule versions could frighten hundreds if thousands of Texans—including both U.S. citizens and current and prospective immigrants seeking authorized immigration pathways—to choose between meeting basic needs like health care and education and the ability of a family member to legally immigrate. Indeed, communities across Texas report this chilling effect has come underway for some time.

Why This Matters. This proposed rule would affect more than just the individual immigrants seeking legal immigration status. There are an estimated 1.8 million Texas children—24 to 26 percent of all Texas kids—who have at least one parent who is not a U.S. citizen. Experts fear that many of those children – including U.S. citizen children – could lose public health and food assistance for which they lawfully qualify because a parent moving through the legal immigration system might fear that if their U.S. citizen family members access any federal programs, the parent would be denied immigration.

In the last decade, every year, between 90,000 and 110,000 new Lawful Permanent Residents are granted green cards in Texas. But this is just the tip of the iceberg. Family-based immigration is slow and complicated, with some immigrants waiting for many years “in line” for their turn to get the Green Card. So, at any given time, several hundreds of thousands of immigrants in Texas are waiting for their chance to get a Green Card.The proposed rules will affect all those seeking a Green Card, unless they are exempt from the Public Charge Test.

The ripple effects of children, teens, and adults going without health care and food would be profound. Schools would face even more hungry students and children with unmet medical and dental needs. More pregnant mothers would avoid or delay accessing prenatal care. Grocery stores would lose business, and food banks and pantries would face overwhelming demand as families turn to them after dropping out of the Supplemental Nutrition Assistance Program (SNAP, formerly “food stamps”).

Understanding the existing “Public Charge” rule. For over a century, the U.S. has been able to deny entry or legal permanent residence to people who are expected to rely principally on the government for their support, or in the language used in an earlier time, are “likely to become a public charge.” Since 1999, U.S. immigration policy has told immigrants seeking a green card (or a visa to enter the U.S.) that their past or future use of public benefits would not be used to deny them a green card or visa, unless they were reliant on the government for cash assistance like Supplemental Security Income (SSI) or the Temporary Assistance for Needy Families program (TANF). Government-paid long-term institutional care like nursing homes could also prevent people from earning a green card or visa.

There are two general situations when a prospective immigrant is “tested” or screened to exclude those likely to rely principally on the government for their support:

People inside the U.S lawfully who are seeking to “adjust their status” to legal permanent resident (LPR, often called a “green card”); and

People outside the U.S. seeking a visa to enter the U.S. lawfully. This can include when a green card holder (LPR) has traveled abroad for over 6 months and is seeking re-entry into the U.S.

There are two important situations in which people cannot be penalized in the U.S. immigration system under this rule:

Refugees, asylum-seekers, domestic violence and human trafficking survivors and some other types of humanitarian immigrants are not subject to the “Public Charge” exclusion.

The screening for reliance on government support is not applied when a green card holder goes through the process to naturalize and become a U.S. citizen,[i] under the assumption that they already passed their screening in order to earn a green card.

[i] A legal permanent resident can apply for citizenship after 5 years in LPR status.

Major Proposed Changes to the “Public Charge” Rule

Under the proposed rule, individual immigrants seeking a green card or a visa would now be judged on:

1. Immigration officials could deny lawful permanent residency (Green Card) to immigrants if they have low incomes and a history of using certain public benefits, including health care (Medicaid, and Medicare’s “Extra Help” subsidies for prescription medications); food (the Supplemental Nutrition Assistance Program SNAP, formerly “food stamps”); and housing (Section 8 vouchers/subsidies). (Just like today, the likely future reliance on government cash assistance or institutional care could also be grounds for denial of a Green Card.)

2. The proposed rule specifically asks for public comments on whether past or future use of the critically important Children’s Health Insurance Program (CHIP) should penalize people in the immigration process. This could affect some children who must apply for Green Cards. This could also affect non-citizen mothers in Texas (both those with authorized immigration status and the undocumented) who get prenatal care from Texas’ CHIP-Perinatal (“CHIP-P”) program. The inclusion of CHIP in the Public Charge rule would push even more women to skip prenatal care, resulting in more high-risk pregnancies and Texas babies born with conditions and special needs that could have been avoided.

3. In addition, the proposed rule would create new hurdles for immigrants with family incomes below 250 percent of the federal poverty income line (about $63,000 annual income for a family of four), and especially high hurdles for families with incomes below 125 percent of the poverty income level (about $31,000 for a family of 4). Green Card applicants in lower-income families, or who have a disability or serious medical condition may be forced to pay for “bonds” of $10,000 or more to get Legal Permanent Resident status.

4. If an immigrant has a large family size, or major illness or disability likely to “require extensive medical treatment or institutionalization,” those could also be considered negative factors toward whether they can get a Green Card.

5. The U.S. Department of Justice (DOJ) is considering changing its rules to more closely monitor Green Card holders to make sure they have not hidden health status or financial conditions that later cause them to need benefits (within 5 years of getting their permanent resident status).

The federal administration circulated even harsher Public Charge proposals throughout 2017 and 2018, which has already resulted in many families dropping or refusing benefits. The mere threat that an additional DOJ rule could revoke an immigrant’s lawful permanent resident status will further aggravate this “fear factor,” discouraging access to health care and food security programs.

Share information at the community level to combat the chilling effect created by this rule. Partners can use this one-pager available in English and Spanish when providing public education on the proposed rule.

Share your Texas story: Children’s Defense Fund-Texas (CDF-TX) is leading story collection on the impact of this proposed rule. Contact Cheasty Anderson to share or inquire about Texas stories.

Who Would Be Affected: How and Why

To understand the wide reach of this proposed “Public Charge” rule, it’s important to remember that the rule doesn’t just affect the individual immigrant applying for a green card or visa. It also affects their family members, who are primarily U.S. citizens, and in some cases may be green card holders (LPRs) themselves. Though family members of a parent who has not yet gained Legal Permanent Residence are likely feeling the greatest pressure to drop healthcare and hunger supports, even parents who already have a green card may have legitimate fears under the proposed rule. Here are some of the reasons why.

A body of research over the last 20 years shows that eligible U.S. citizens who live in families that also include a non-citizen have been significantly less likely to access health care and food than children and adults who do not have a non-citizen family member.

Across the U.S. and in Texas since early 2017, providers have reported a strong increase in aversion to using health and hunger benefits. In Texas, SNAP (formerly known as Food Stamps) enrollment declines, reduced public clinic use (including reduced prenatal care), and upticks in newborns with problems have all surfaced across the state. [ii]

Different kinds of families would be affected. Affected families would encompass a broad range of situations, from families who are already in a process to sponsor the legal immigration of a loved one in the near term, to others who—because of the long U.S. waiting lists for legal family-based immigration—plan to gain legal status but who may have to wait years for their “turn.” This would include some parents with a family living in the U.S., but who are themselves living in their home country awaiting a visa to enter the U.S. Some families who know they must wait for years for their legal chance to immigrate live apart, while others choose to work “in the shadows” in the U.S. because of the long wait for a chance to enter lawfully.

Some families in which the non-citizen parent already has a green card (Legal Permanent Resident or LPR status) would be affected by the proposed rule as well. For some, the choice to receive health care or food benefits could mean they cannot longer travel to their home country to visit family for more than six months, because of the possibility that the new “Public Charge” policy could be applied to them when they try to re-enter the U.S. In addition, the DHS proposed rule document indicates that the U.S. Department of Justice may also adopt new rules to further scrutinize those who already have green cards. Under current law, a green card holder would not be deported merely for using public benefits, but an immigrant who “becomes a public charge” within their first five years in LPR status must be able to demonstrate that they did not hide in some way the cause of their need for benefits order to gain entry to the U.S.

Fear, confusion, and misunderstanding would increase the numbers affected. Drafts of the proposed rule leaked earlier in 2018 threatened to deny green cards to adults whose U.S. citizen children received health care or food assistance. The new draft deleted that terrible proposal—likely because it would have unconstitutionally made those children second-class U.S. citizens—but replaced it with a provision that immigrants seeking a green card in a family that includes U.S. citizens eligible for either Medicaid or SNAP will likely still be denied a green card. So, under the earlier rule drafts, a parent trying to immigrate would be denied the green card because the citizen child received benefits; and now the parent will be denied because the family’s income is low enough for those children to get Medicaid or SNAP. Unless that family can put up cash bonds, the parent is still excluded. This latest policy is likely to have a nearly equivalent effect on the use of needed health, food, and housing assistance as its predecessor.

Connecting the Dots

The intersections of immigration law and public benefits law are complex. Here are some additional implications of the proposed federal rule that may not be immediately obvious:

It is designed to discourage lawful immigration pathways, by prospective immigrants from using health care, hunger, and other basic needs services, and to frighten U.S. citizen relatives from using services they are lawfully qualified for. In this way, it is designed to undermine the U.S. system of family-based immigration, potentially having a major impact without getting Congress to change those laws.

It tries to avoid the legal challenge that would surely result if DHS created create de facto “second-class citizens” (by forcing some U.S. citizen children to go without the health care and food supports that all other similarly situated U.S. citizen children are free to use), but still deny green cards and intimidate families into dropping citizen children’s benefits through the use of a new more restrictive income and wealth test.